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JK THE CONSTITUTION.-No. 9. 

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_L J BY l/BONNEFOITX. 

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THIS NUMBER TREATS THE F&LOWING CONSTITUTIONAL QUESTIONS 

SUPREMACY OF THE NATIONAL .GOVERN¬ 
MENT OVER THE SEVERAL .STATES ' 

OF THE UNION. • 

CONSTITUTIONAL JURISDICTION OF THE 
NATIONAL GOVERNMENT OVER 
REVOLTED STATES. 


FALLACY OF STATE RIGHTS, BASED ON STATE 
SOVEREIGNTY. 


November, 1804. 

NEW YORK: 

Wm. C. Bryant & Co., Printers, 41 Nassau St., cor. Liberty 
1864. 


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THE CONSTITUTIOH.-Ho. 9. 



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THIS NUMBER TREATS THE FOLLOWING CONSTITUTIONAL QUESTIONS: 


SUPREMACY OF THE NATIONAL GOVERN¬ 
MENT OVER THE SEVERAL STATES 
OF THE UNION. 

CONSTITUTIONAL JURISDICTION OF THE 
NATIONAL GOVERNMENT OVER 



REVOLTED STATES. 


FALLACY OF STATE RIGHTS, BASED ON STATE 


SOVEREIGNTY. 




November, 1864. 


NEW YORK: 

Wm. C. Bryant & Co., Printers, 41 Nassau 


sdSu St., 0or. Liberty 

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EXPLANATORY REMARKS. 


The manuscript of the matter contained in the article headed “ The Con¬ 
stitution, No. 9,” was written in Paris, in the spring of 1863. It was part 
of a treatise on the Constitution of the United States which the writer there¬ 
of had intended to prepare at his leisure ever since 1850. Said writer resided 
in Washington in the winters of 1849 and 1850, when the question of the 
Wilmot Proviso, the admission of California in the Union, and the Compromise 
measures were agitated; two parties, with conflicting views, pretended each 
that its own views were constitutional , while those of the other party were, 
on the contrary, unconstitutional . The impartial observer, in order to see 
which party was right, had necessarily to look into the Constitution, that is, 
the Text Book; this is what the writer of this article did, but in order to 
come to a clear insight of the subject he had to look into the debates of the 
Convention which framed the Constitution; into the documents containing 
the proceedings which took place preparatory to the adoption of the Constitu¬ 
tion ; into the Articles of Confederation; into the Ordinance of July, 1787, 
&c., &c. After a careful investigation of the whole, he concluded that both 
parties were wrong, inasmuch as the form of Government which went into 
operation, in 1789 did not seem to be understood by either party. It was then 
that the writer of this article collected materials with a view of writing a 
Treatise on the Constitution, but travelling abroad prevented its accomplish¬ 
ment. The rebellion that took place in 1861 brought the subject again into 
his mind, and from the 12th of October, 1861, to the spring of-1863, six de¬ 
tached articles on the Constitution were published ; in May, 1863, two more 
articles—Nos. 7 and 8-^were forwarded, from Paris, to Mr. Bryant, of the 
Evening Post, who had the kindness to have them published in a pamphlet 
form in the month of July following. On the 24th of November, 1863, the 
writer being then in New York, the first part of the “ Constitution, No. 9,” 
was published in the Evening Post; the whole of that number is now herein 
published in a pamphlet form. No. 10 will be the last of the series, and 
when published, it will contain, besides, a /omprehensive digest and com¬ 
pendium of the whole. 

The Article headed “National Sovereignty and State Rights,” has been 
inserted herein verbatim in the form that it had been addressed to the editor 
of the New York Times, because it seems to corroborate views previously 
expressed—page 8—in the article republished above, from the Evening Post 
of Nov. 24th, as to the fact, that Public men in the United States seem to be 
tainted with the prevailing heresies in general circulation, on the subject of the 
Constitution; these views are concluded as follows : 

“ To this remark it may be added, that the political leaders of the various 
parties, which have sprung up for the last fifty years, have been more or less 
tainted with the prevailing heresies in general circulation.’* 

New York, October 29th, 1864. 


L> B; 



New York, Oct. 14th, ’64. 

The article which follows, headed “ The Constitution-, No. 9,” was first 
published in the New York Evening Post of the 24th of November last, with 
the following editorial remarks: 


Power of the Federal Government over the States. 

The question of the supremacy of the Federal Government within its con¬ 
stitutional sphere over the several States of the Union, is ably discussed in 
an article on our first page, from the pen of Mr. Bonnefoux, author of a 
pamphlet entitled “Exposition of the Constitution,” which we published not 
long since. It is intended as a continuation of the subject treated of in that 
pamphlet. Mr. Bonnefoux, it will be seen, holds that a State offending against 
the prohibitions of the Constitution may, by the terms of that instrument, be 
subjected to punishment, which it is within the discretion of the Federal 
Government to impose. This view of the subject is one of great importance, 
and deserves careful consideration. 


In view of the great importance of the subject above alluded to, it has 
been thought desirable to present said article to the appreciation of the public 
in general, and to the consideration of Congress, at its next session, in the 
convenient form of a pamphlet. 


THE CONSTITUTION—No. 9. 


SUPREME POWER OE THE NATIONAL GOVERNMENT 

OVER THE SEVERAL STATES. 


Paris, March 15, 1863. 

Clauses 1, 2/3, of Section 10 in Article I. of the Constitution, 
enumerate various powers of a national nature, which are ex¬ 
pressly prohibited to the several States : Clause 1, for instance, 
provides that— 

“No State shall enter into any treaty, alliance, or confed¬ 
eration.” 

It is self-evident that the people of the United States—that 
is, the constituent powers which ordained the Constitution— 
must have understood that the National Government created by 
them, for the avowed special purpose of securing and perfecting 
their union , should be entrusted with ample and sufficient 
powers to enforce on the several States a due compliance to the 
prohibitions so explicitly enjoined upon them in the formal be¬ 
hests of the national covenant. 

The framers of the Constitution did faithfully and effectually 
perform their duty. Firstly , By virtually constituting the Presi¬ 
dent of the United States the special preserver and custodian of 
the Constitution; entrusting him, in case of danger to the 
Union, with unrestricted discretionary powers to vindicate the 
supremacy of the National Government; this significant fact 
has been irrefutably established in the preceding article. 



6 


Secondly , By investing Congress witli the sovereign right to 
punish treason; this has been done in Clause 2 of Section 3, in 
Article III. of the Constitution, which is as follows: 

“ The Congress shall have the power to declare the punish - 
ment of treason .” 

It follows, rigorously, from the above premises, that whenever 
any State, or States, infringe any of the prohibitions that the 
“ constituent power” has thought fit to ordain , that the Presi¬ 
dent, who is bound to “ take care that the laws be faithfully exe¬ 
cuted,” (see Section 3, in Article II.,) shall summon such in¬ 
fringing State or States to refrain from violating thus the Con¬ 
stitution ; and if, in consequence of violations thereof, hostilities 
follow, such “ hostilities ” shall necessarily constitute , on the 
part of the delinquent States, the fact of levying war against 
the United States. Now, the act of “levying war against the 
United States ” is declared in Section 3 of Article III. of the 
Constitution to be treason ; such States that shall be guilty of 
levying war against the United States, shall, by so doing, commit 
the crime of “treason,” and shall, thereby, be amenable to any 
penalty that Congress shall decide proper to enact and inflict by 
virtue of Clause 2 in Section 3, of Article III., which provides, 
as stated above, that: 

“ The Congress shall have the power to declare the punish¬ 
ment of treason .” 

The delinquent States that may have thus, through their own 
willful acts, feloniously violated and cancelled the allegiance to 
the Constitution they were solemnly bound to by a sacred 
covenant, have thereby forfeited all rights and privileges they 
held under that instrument, and whenever overcome by force, 
they are constitutionally amenable, as stated above, to the juris¬ 
diction of Congress, and to the punishment and penalties which 
that national body shall decide upon as proper to enact; Con¬ 
gress, in such a case, will constitute a grand National Court of 
Justice, acting in pursuance of the special power delegated by 
the constituent power which ordained the Constitution “ to de¬ 
clare the punishment of treasonS 


7 


The framers of the Constitution, by combining thus the above 
recited provisions of that instrument for the purpose of effica¬ 
ciously protecting the Union against any minority of States that 
might confederate against it, formally empowered thereby the 
National Government to vindicate and enforce effectually its 
supremacy over separate States. [See Remarks A at end.] 

The supreme power of the National Government over separate 
States is further rigorously and emphatically ordained in Clause 
2, Article YI. of the Constitution, which is as follows: 

“ The Constitution and the laws of the United States which 
shall be made in pursuance thereof; and all treaties made, or 
which shall be made under the authority of the United States, 
shall be the supreme law of the land; and the judges in every 
State shall be bound thereby , anything in the Constitution or 
laws of any State to the contrary notwithstanding 

Moreover, Section 8, in Article I. enumerates seventeen distinct 
sovereign powers of a national character conferred on Congress 
by the constituency which ordained the constitution. This enu¬ 
meration of powers is followed by the following significant pro¬ 
vision (Clause 18): 

“ To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this constitution in the Government of the 
United States, or in any department or officer thereof.” 

The qualification of “ proper” implies that the National Gov¬ 
ernment, under due responsibility to the constituent power, is to 
be the judge of the propriety of any law intended to carry out 
any of the powers expressly delegated to Congress by virtue of 
the above transcribed provision ; it' shows, in on6 word, that the 
framers of the Constitution meant that the National Government 
should be entrusted with a liberal construction of the powers 
expressly delegated to Congress. The expediency and the pro¬ 
priety of the “ means ” to carry out such expressly delegated 
powers as Congress shall decide fit to adopt cannot be ques¬ 
tioned as to their positive constitutionality. Any citizen has 
the undoubted right to express his own individual opinion as to 
the propriety or policy of these “ means,” but no separate State, 
nor any of the officials of State governments, are competent, in 


8 


their civil or judicial capacity, to deoide as to the constitutional 
propriety of a law enacted by Congress in pursuance of Clause 
18, in Section 8 of Article I; the constituent power of the 
United States only can overrule the “ propriety” of the (( means” 
devised as <£ proper” by Congress; the whole people in conven¬ 
tions assembled form and embody the constituent power, and a 
formal decision of a three-fourths majority of these conventions 
constitutes, actually, the supreme law of the whole Union ; this 
three-fourths majority can, of course, reverse the action of Con¬ 
gress and pronounce a formal decision as to the propriety of the 
“ means” devised by the national Legislature. 

The obvious bearing (as above exposed and established) of 
Clause 18, in Section 8 of Article I, has been fully confirmed by 
the Supreme Court of the United States. In the year 1791, a 
Bank of the United States was chartered by Congress. The 
power to grant a charter was opposed as unconstitutional, on 
the ground that the power to charter a bank is not among the 
powers expressly delegated to Congress. The Supreme Court 
ruled out this plea and construction, and declared the bank 
constitutional , inasmuch that Congress was specially entrusted, 
by virtue of Clause 18, in Section 8, of Article I—with the choice 
and discretion of the “ means” it thought “ proper” to devise in 
order to carry out its expressly delegated powers. This prece¬ 
dent is conclusive, and absolutely debars State governments, 
State courts, and State officials generally, from questioning the 
powers of Congress in the premises. 

The supreme power of the National Government over State 
governments and over State authorities, both civil and judicial, 
has been, according to the above exposition, fully established by 
the framers of the Constitution. This was the avowed principal 
object they had in view, and this principal “ object” was ac¬ 
knowledged, at the time the National Covenant was adopted and 
ratified, to have been accomplished, both by its supporters and 
opponents. The historical records of these days show, that the 
opponents of the form of government devised by the framers of 
the Constitution—which they sneeringly qualified as constitut¬ 
ing a consolidated government—opposed its adoption ; but they 
had to give way to the pressure of public opinion in its favor ; 
and the just expectations of the far-sighted leading statesmen of 


9 


the times, and of the people at large, were fulfilled by the form¬ 
ation of an efficient National Government. 

It has been laid down and shown, at the start of this article, 
that the framers of the Constitution had devised, combined and 
connected several provisions “ for the purpose of efficaciously 
protecting the Union against any minority of States that might 
confederate against it, formally empowering thereby the 
National Government to vindicate and enforce effectually its 
supremacy over separate States,” and that a special power had 
been delegated to Congress, in general terms, “ to declare the 
punishment of treason.” This “ power,” having been delegated 
in general terms, implies necessarily that Congress is to be the 
discretionary and supreme judge of the penalties to be inflicted 
whenever “ treason ” occurs. The outrageous and unprovoked 
armed rebellion now existing in the United States will demand, 
whenever subdued, that this high prerogative of sovereignty— 
that of inflicting the punishment of treason—should be so exer¬ 
cised as to vindicate the paramount authority of the constituent 
power which ordained the national Union. / 

It is intended herein to indicate the nature of the penalties 
that it might be judicious for Congress to inflict; but, prepara¬ 
tory to doing so, it is proper to demonstrate that the fallacious 
doctrine of state rights, and the unwarranted pretension that 
the separate States are sovereign powers, constitute , actually, the 
determining causes of the rebellion which had taken place. 
These disorganizing doctrines have been so insidiously and per- 
sistingly disseminated that they are naturally believed to be 
orthodox by a majority of the citizens of the United States, and 
inferences cunningly drawn therefrom impart plausibility to the 
barefaced imposture given out to the world , that the national 
form of government established by the Constitution of the 
United States, ratified in 17S8 by nine States, constitutes a con¬ 
federation or confederacy .of sovereign States. The present 
generation of Americans, it has been remarked in the preceding 
number, “ know very little about their Constitution ; they are 
content to enjoy its benefits without troubling themselves how 
they have been acquired or secured. ***** They 
leave constitutional matters to be settled by partisans and quib¬ 
bling lawyers, by unscrupulous demagogues and newspaper 
2 




10 


scribblers. These facts explain how the American people, so 
intelligent generally on other matters, have been deluded and 
led into false issues, adopting as orthodox fallacious doctrines 
on the subject of the Constitution, the fallacy whereof they 
could easily detect were they to read and investigate the text 
book with the same attention they scan the items of the money 
market.” To this remark it may be added, that the political 
leaders of the various parties which have sprung up for the last 
fifty years have been more or less tainted with the prevailing 
heresies in general circulation. 

It becomes, therefore, a matter of great importance to uproot 
the dangerous perversions of the Constitution above alluded to 
by showing how they originated, and, by exposing their utter fal¬ 
lacy, exhibit to the light of truth the trickery ofthe most impu¬ 
dent and artful juggle of modern times. 

[to be continued.] 


New York, Oct. 14th, 1864. 

The continuation of— The Constitution No. 9- —was not, as intended, pub¬ 
lished in. the Evening Post, but the substance thereof was embodied in the 
underneath communication addressed lately to the N. Y. Daily Times —inser¬ 
tion thereof, in said paper, having been declined, it is now published under¬ 
neath. 

NATIONAL SOVEREIGNTY AND STATE RIGHTS. 

To the Editor of the New York Times : 

Your paper of the 22d inst. contains an article headed 
“ National and State Sovereignty” intended seemingly, to vin¬ 
dicate “ The Sovereignty of the American Union” over the 
States, but containing an admission which may be used by cap¬ 
tious people and designing men to invalidate the very point 
sought to be established. 

It is stated in aforesaid article, that the South and its office¬ 
seeking Allies in the North—“ have dishonestly and treason¬ 
ably sought to invade, take back, and destroy the well defined 
National Sovereignty which the States had distinctly and unani- 




11 


mously granted to and vested in the Union for the common pro¬ 
tection and welfare of all.” 

Now, the expression States may be understood as implying 
the constituent Power of the States, that is, the People thereof, 
taken in that sense, the “ expression” States—may, to a certain 
degree, be appropriate; but if said expression is understood to 
mean the Legislature and officials administering the government 
of said States, respectively, for the time being, then such an ex¬ 
pression is altogether misplaced and erroneous—the States , im- 
plying by that expression,—the States’ governments, did not 
grant the “ National Sovreignty” vested in the Union ; they did 
not receive from the people any authority whatever on the sub¬ 
ject. The constitution, having in view to effect the Union and 
create “ National Sovreignty,” was ordained by the People, as 
may be seen in its preamble, and Article YII. thereof—thus 
provides the Covenant of its being binding to the people of each 
State, respectively. 

“ The ratification of the Conventions of nine States, shall 
be sufficient for the Establishment of this Constitution between 
the States, so ratifying the same.” 

/ The State governments of the States ratifying the Constitu¬ 
tion, were thus divested by the people thereof from all the 
Sovereign powers of a National nature, which the people of each 
ratifying State had agreed and deemed proper, by solemn com¬ 
pact, to grant to a common National Government. It was through 
this process that the people of the various States became united 
and merged into one People , that is, as stated by "W ashington 
(in his first Inaugural Address to Congress, and in his Farewell 
Address to the People) One Nation / styled by him—The Ame¬ 
rican People.—The powers and attributions, that the people of 
each State left to the States’ governments, became, thereby, 
mostly municipal , and were limited in each State, respectively, 
to such State Constitution that the people thereof in convention 
assembled, choose to adopt. 

The various fallacies which have been started, by designing 
inen, as to the real nature of the principles of government 
which guided the framers of the Constitution, may be traced up 
to the seemingly careless use of words having a double meaning* 
The very expression, States 5 above defined, was used in the 


12 


notorious resolutions of 1798 (passed by the State of Virginia) 
in an equivocal sense, that gave rise to misapprehensions which 
have been the subject of party strife to this day. The first reso¬ 
lution was as follows: 

1st. “ That the Constitution of the United States was a com¬ 
pact in which the States w^ere parties, granting limited powers 
of government.” 

The above resolution being passed by a mere Legislatnre, the 
expression States , used therein, is obviously intended to mean, 
the States’ governments ; and the assertion, that the States, 
meaning, thereby, the States’ governments, were parties to the 
Constitution, is clearly untrue, as it has been already shown ; no 
g constitutional power whatever has been delegated to the Legisla- 
jA tures of the States to interfere with the Acts of Congress, and the 
Legislature of Virginia, by passing the resolutions of 1798, has 
assumed an authority derogatory to the constitution and subver¬ 
sive thereof. 

The resolutions of 1798, were passed at a time of great politi¬ 
cal excitement; Congress, under the administration of John 
Adams, had enacted laws designated at the time “ The Alien 
and Sedition Acts,” which were publicly denounced as uncon¬ 
stitutional ; and it must be admitted that the enactment of such 
Acts was justifiable only in time of war, which was not then the 
case, but the rising tide of public opinion was sufficient to 
effect their repeal. The resolutions of the Legislature of Vir¬ 
ginia, stated, in substance, that they had the right to interpose 
against the laws of Congress. This startling pretension was sus¬ 
tained by one Legislature only , that of Kentucky. This assump¬ 
tion of authority by a mere Legislature, was justly considered as 
a manifest violation of the Constitution ; Washington, from his 
retirement at Mount Vernon, strongly denounced these resolu¬ 
tions as anarchical, and solemnly gave warning, that if such dis¬ 
organizing doctrine as was contained therein, was to be acted 
upon, that it w T ould surely lead to the disintegration of the 
Union. The constitutional remedy for unpopular Acts of Con¬ 
gress, is, the action of public opinion properly directed to secure 
the election of members of Congress pledged to repeal the 
obnoxious laws complained of. There is, besides, a radical mode 
of redress provided for in the Constitution, which is effected by 


13 


the ultimate decision of a three-fourths majority of conventions 
of the people of the States in the Union. The Constitution was 
made absolutely binding on the people of each State, respec- 
tively, which ratified it, from the day that it was ratified by a 
three-fourths majority of the whole: this three-fourths majority 
constitutes, therefore, fundamentally, the Supreme Law of the 
land, and controls alike, Congress, President, and Supreme 
Court of the United States. 

The forebodings of George Washington, as to the evils re¬ 
sulting from the adoption of the disorganizing doctrine of State 
Eights laid down in the resolutions of 1798, were fully justified 
by subsequent events; in 1832, John C. Calhoun broached 
thereon his scheme for the nullification of the laws of the United 
States, this was, however, put down by that trusty guardian and 
watchful preserver of the Constitution, President Andrew Jack- 
son ; but the disorganizing doctrine of State Eights had been 
insidiously disseminated throughout the United States; it was 
represented to be—The Landmark of the Democratic party— 
The assumed interposition of a Legislature against a law of 
Congress, had been the first inroad of that disorganizing doc¬ 
trine ; nullification came next; and finally, in 1860, we have had 
secession and rebellion ; thus realizing the prediction of Wash¬ 
ington in its full extent , unless the supremacy of the National 
Government be ultimately vindicated. 

One year ago last summer, a mere official of a State, Governor 
Seymour, of the State of New York, took upon himself to de¬ 
nounce a law of Congress (that concerning the draft,) as uncon¬ 
stitutional ; allusions to the right of the people to resist uncon¬ 
stitutional laws were publicly made by him. The hint, by no 
means obscure, was eagerly taken by the supporters of the 
doctrine of State Eights ; the disgraceful riots of July were the 
immediate consequence. 

The evils, above enumerated, as resulting from the confusion 
created in the public mind by the use of expressions liable to be 
misunderstood, and consequently perverted by political dema¬ 
gogues, show how cautious the adherents of “ National Sover¬ 
eignty” ought to be, not to make any admissions giving specious 
pretexts to their opponents; the admission contained in the 
A 7 . Y. Times of Sept. 22 d, that—The States (viz.: States’ Go- 


14 


vernments) liad granted the powers which constitute “National 
Sovereignty”—is liable to be mystified by the specious argument 
—that the same authority that has granted powers, holds the 
right to control the exercise thereof, and that the Legislatures of 
the States have therefore the right to interpose their authority 
against Acts of Congress whenever they consider such Acts as 
unconstitutional. 

The New York Times is well known as an able and warm 
supporter of “ National Sovereignty”—it cannot be suspected 
to countenance doctrines undermining its correct bearing and 
true origin, except through oversight—it is, therefore, proper to 
call the attention of its editor to the fact, that such an over¬ 
sight has taken place, so that it may be explained in order that it 
may be clearly shewn that the Doctrine of State Eights and State 
Sovereignty, as commonly understood, is not only antagonist 
to the "Onion, but is, positively, subversive thereof. 

L. B. 

N. l r ., September 30th. 


[The above communication to the New York Daily Times forms only part 
of the continuation of the article headed “ The Constitution, No. 9,” which had 
been intended to have been published in the Evening Post. The following 
remarks, forming part of said “continuation,” corroborate forcibly the views 
taken therein, and on that account have found a place herein.] 

It lias been stated above, that Article YII. of the Constitution % - 
provides, in the following terms, the Covenant of its being bind¬ 
ing to the people of each State, respectively. 

“ The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying.”* 

Well, the conventions of eight States had, on the 23d of May, 
1788, ratified the Constitution, and on the 21st of June follow¬ 
ing—the Convention of New Hampshire having sent its ratifi- 


* All the ratifications commenced with “ We, the Delegates of the Peo¬ 
ple;” and all terminated by making the ratifications “in the name of our 
constituents, the People*” 





15 


cation—the adopted Constitution became thus binding to the 
nine ratifying States. To the people of the State of New 
Hampshire is due the credit of having determined and effected 
the union of the people of nine States for one common pur¬ 
pose, and of thus merging the people of these nine States into one. 
It was thus that the American Union, as George Washington 
termed it, was effectually established. The moment that the 
ratification of the requisite ninth convention of the people was 
duly received by the Congress of the Confederation, it became 
its imperative duty to organize at once the National Govern¬ 
ment, without waiting for any other ratification. The conven¬ 
tion of the State of Virginia had kept back its ratification; a 
few State Rights men within said convention objected to some 
clauses of the adopted Constitution; but when the people of 
Virginia heard that the American Union was on the point of 
going into operation without them, they hastened to ratify it such 
as it came from the hands of its framers, with the clauses objected 
to, which became thus binding on Virginia as well as on the other 
ratifying States. The clause that was most objected to by State 
Rights men was the one which closes the enumeration of various 
Sovereign and National powers granted by the people to the 
General Government in Article 1st, Section 8, of the Constitu¬ 
tion ; said clause is as follows: 

“ To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other 
Powers vested by this Constitution in the Government of the 
United States, or in any department or officer thereof.” 

The above clause is actually the controlling clause of the Con¬ 
stitution. It determines clearly, the nature of the principles it 
is founded upon. These principles are, that the Powers granted 
to Congress in Article I, section 8, are limited by their specialty, 
but that each of these Powers includes the general delegated 
Power “ to make all laws which shall be necessary and proper 
for carrying into execution” such special Power ; the expression 
“ proper,” implies obviously, that Congress is to be the Judge of 
the propriety of the means to be enacted, &c. 

The obvious bearing of the above controlling clause was, in 
the year 1791, the subject of a formal decision of the Supreme 
Court of the United States; a Bank of the United States 


16 


had been chartered by Congress; it was objected to by State 
Legislatures, (fee., on the ground that Congress had not been 
vested with the special power to do it. This view of the sub¬ 
ject was overruled by the Supreme Court. It decided unan¬ 
imously—Chief Justice Marshall presiding—that Clause 18, in 
Section 8, of Article I of the Constitution, grants obviously to 
Congress the power to devise the means proper to be adopted for 
carrying out into execution any of its delegated powers. This 
important decision forms a precedent that cannot be reversed 
but by an amendment to the Constitution. It settles down the 
principle, that any law of Congress, fairly deducible from any 
of its delegated powers, is the Supreme Law of the land , and 
cannot be questioned by any State authority, either civil or judi¬ 
cial. This last point is expressly provided for in Clause 2d, Ar¬ 
ticle YI., of the Constitution, laying down, in explicit terms, the 
conservative principle , that the laws of the United States “ shall 
be the supreme law of the land, and the Judges in every State 
shall he hound thereby , anything in the Constitution or Laws of 
any State to the contrary notwithstanding .” 

Clause 18, in Section 8, of Article I., above transcribed, was 
the very clause that was most objected to by the supporters of 
State Rights. Patrick Henry, one of the leaders of that party, 
denounced that clause as dangerous to the liberties of the people 
by pointing out that the implied powers clearly delegated to 
Congress in said clause, constitute a consolidated power ; mean¬ 
ing thereby, according to his explanations, that it would lead to 
despotism, (fee. The opinion expressed by Patrick Henry, that 
the principle and system of government determined and laid 
down in said clause, would constitute a consolidated power— 
was correct; but it merely consolidated unity in the form of 
government, which was the principal and great object avowed 
to be in view by the framers of the Constitution. As to the 
opinion expressed by Patrick Henry, that such a form of con¬ 
solidated power would lead to despotism, he was completely 
wrong. Time has amply proved that such apprehension was 
erroneous, and, in fact, purely imaginary. It can be shown, on 
the other hand, that all the material difficulties that have 
occurred in the sound working of the Constitution, owe their 
origin and progress to the disorganizing and fallacious doctrine 


17 


of State Eights, based on the delusive assertion of State govern¬ 
ments’ sovereignty. 

Washington, in his inaugural address to Congress, April 30th, 
1789, alluding to the exercise of the power contained in Article 
V. of the Constitution, relative to amendments thereto, sug¬ 
gests, that Congress should carefully avoid “ every alteration 
which might endanger the benefits of an united and effective 
government.” This was a warning to those adherents of State 
Eights who were opposed to the implied powers vested in Con¬ 
gress—Clause 18 of Section 8 of Article 6 of the Constitution— 
the officials of the State governments had been powerless to pre¬ 
vent the people from divesting their own State governments, 
respectively, of the sovereign powers the State governments had 
assumed to exercise, they—the officials—had influence enough 
in many States to commit a number of their representatives in 
Congress to propose amendments to the Constitution with a 
view of getting one, among these amendments, intended to amend 
or nullify the consolidating clause above indicated, but they did 
not succeed; the majority of Congress were in favor of main¬ 
taining the explicit bearing of implied powers contained in said 
clause. Its opponents had therefore to be very cautious in the 
wording of any amendment having any bearing on the subject, 
lest their motives should be suspected; after three years of in¬ 
trigues they obtained a majority of three-fourths of the Legisla¬ 
tures in favor of the following amendments : 


Article X. 

u The powers not delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.” 


The States’ Eights men of our day attach great importance to 
the above amendment and give it a meaning which, no doubt, 
would have been properly expressed if those that concocted it 
had not been aware, that it could not have been passed through 
3 


18 


had they clearly disclosed therein the end they had in view ;* 
the amendment, in the form that it stands, does not invalidate, 
in the least, the obvious bearing of the implied powers con¬ 
tained in Clause 18, Section 8, of Article I.—An organic clause 
of the Constitution cannot be impaired by any future amende 
ment, unless said amendment refers in explicit and direct terms 
to the clause intended to be amended.—Amendment X. does not 
refer to anything distinctly, and will puzzle the critical reader 
to make out its precise meaning; it is, actually, nothing else 
than a loosely worded, vague and unmeaning declaration. 

In order to uproot the dangerous perversion of the Constitu 
tion which the fallacious doctrine of State Rights had dissemi¬ 
nated throughout the United States, it was not only requisite to 
show how it originated, and expose its utter fallacy, but it was, 
also, proper to investigate the principle of the form of govern¬ 
ment intended to be established by the framers of the Constitu¬ 
tion. It has been shown above, by commenting on the obvious 
bearing of Clause 18, in Section S of Article I, that it determines 
clearly, that the principle upon which the Union had been based 
is, that the laws of Congress, fairly deducible from its delegated 
powers, are the supreme Laws of the Land. The avowed prin¬ 
cipal object of the framers of the Constitution was to consolidate 
the Union , and Washington thus expresses the views of the Con¬ 
vention , in the official notification of the adoption of the Con¬ 
stitution addressed to Congress by unanimous orders of the 
Convention : “ In all our deliberations on the subject, we kept 
steadily in view that which appears to us the greatest interest of 
every true American—the consolidation of our Union.” The 
deliberate purpose of consolidating unity in the form of our 
Government exhibits the wisdom and foresight of its framers ; 
they foresaw that party feeling, which is the natural consequence 
of free institutions, might be stirred up to a dangerous ex¬ 
tent by party demagogues; that combinations and associations 


* Washington, in his Farewell Address to the people of the United States, 
alluded, no doubt, to some of the amendments to the Constitution, adopted 
1791, in the following sentence: “ One method of assault may be to effect in 
the forms of the Constitution alterations which will impair the energy of the 
system, and thus to undermine what cannot he directly overthrown 



19 


of individuals or of State authorities might be formed to obstruct 
the execution of the laws ; it was, with a view of encountering 
these perilous eventualities, that the President was entrusted 
with the special duty of preserving the Constitution, and was 
invested with ample powers to do so effectually; and also, 
that the legislative powers of Congress were constituted supreme 
over State authorities— State laws and constitutions to the con¬ 
trary notwithstanding —so that the laws of Congress, fairly de- 
ducible from their delegated powers, cannot be questioned under 
the pretence of unconstitutionality by any State court, tribunal, 
or by any officials and Legislatures of State Governments. By 
these means, the framers of the Constitution had succeeded to 
devise a form of Government that had all the elements requisite 
to be transmitted unimpaired to future generations; it was 
sufficiently consolidated to allow the National Government to 
control, within constitutional bounds, the violence of party, quell 
factions, and crush sectional insurrection if need be; on the 
other hand, the democratic tendency of the House of Repre¬ 
sentatives being happily tempered by a conservative Senate, no 
apprehension need be entertained that these two bodies would 
ever agree to restrain the liberties of the people. Although the 
State Governments were not parties to the Constitution, per¬ 
manent influence on the action of the National Government was 
guaranteed to them by a fundamental clause, providing “ that 
no State, without its consent, shall be deprived of its equal 
suffrage in the Senate.’* The States, by means of their Senators, 
have an effective and legitimate influence, as neither legislation 
by Congress, nor negotiations with foreign powers, and even 
nominations by the President can take place, without the assent 
of the Senate; but beyond the above influence, they are debarred 
altogether by the Constitution from obstructing the action of the 
National Government. Any interference of. State authorities 
against the unity form of the Government ordained by the 
people, constitutes a violation of the Constitution which ought 
to be at once prevented; and had this been done whenever such 
Interference has been attempted, the existing rebellion would 
not have taken place. 

At the time that the Constitution of 1788 went into operation, 
the peculiar form of Government that had been adopted was 


20 


well understood—no one thought of calling it a confederation 
of sovereign States. It w T as, indeed, notorious that it had been 
devised in obedience to popular feeling, for the purpose of divest¬ 
ing the State Governments of the sovereign powers that they had 
assumed to exercise and to misuse / and many of the officers of 
State Governments, who had lost considerable importance by 
the change in the form of Government, denounced the new 
form as constituting a consolidated Government. Their feelings 
in favor of State Sovereignty were, at that time, kept down, as 
they well knew that the people, at large, were opposed to it; 
but by degrees the doctrine of State Eights was insiduously cir¬ 
culated, and through these means the imposture that the form 
of Government of the United States is u a confederation of 
sovereign States” got footing, and became the popular delusion 
of modern times, so that, in our days, it requires an elaborate 
investigation to expose its utter fallacy and to throw proper 
light on the political jugglery contrived by designing men to 
delude the public mind. 

The general exposition of facts contained in this article, (see 
Appendix,) is intended, as stated on page 8, to exhibit to the 
light of truth the trickery of the most impudent and barefaced 

imposition of the age. 


L. B. 


REMARKS, A. 


The underneath remarks were appended, in the shape of a note, to the tenth 
paragraph of “ The Constitution, No. 9,” as published in the Evening Post 
of November 24th, last; they sum up and condense forcibly the constitutional 
points irrefutably established in said article, and it has been thought proper, 
in consequence, to reproduce herein said remarks more conspicuously and in 
larger type: 

The connection of the above-recited provisions (see pages 4, 
5,) proves that some of the leading framers of the Constitution 
foresaw the national dangers that might assail the Union. It 
proves, moreover, that they all understood the drift of public 
opinion and the unmistaken will of the sovereign people.—A 
more perfect Union under a national government was the general 
aspiration at the memorable period when a popular outcry was 
rife against the misrule and inefficiency of State governments, 
and the embroiling , jarring doctrine of State Rights,—The peo¬ 
ple, at large, did not mean that their unity under a national gov¬ 
ernment should be put into jeopardy by any concerted acts of a 
minority of States. The framers of the Constitution acted in 
accordance to that well understood feeling, when they provided 
therein. 

First, that “ no State shall enter into any treaty, alliance, or 
confederation.” 

Further, that the violators of the Constitution, by “ levying 
war against the United States,” shall, by so doing, commit 
“ treason.” 

Finally, that the Congress should be invested with the 
sovereign prerogative and the special duty “ to declare the 
punishment of treason .” 

This solemn duty was thus specially delegated, in general 
terms , so that Congress might discriminate and determine ac¬ 
cording to their judgment and discretion the various grades 
of penalties to be inflicted. 

An act of Congress, passed April 30, 1790, summarily enacts 
that any person or persons that “ shall levy war against the United 
States,” &c.j and shall thereof be convicted, “ shall suffer death.” 


22 


This act, of course, may be modified or repealed; the omnipo¬ 
tence of Congress on the special point of declaring the punish¬ 
ment of treason cannot be contested. Congress, at any time, 
may enact such laws as will reach, discriminate, and determine 
the various grades of criminality attending an extensive re¬ 
bellion. 





APPENDIX 


W. Hickey’s standard work on the Constitution of the United States is the 
best book to consult in order to understand correctly its true import and 
bearings: 

First. —Because the Constitution, itself, therein given, bears the certificate 
of the State Department stating that it has been “ critically compared with 
the original in this Department and found to be correct, in text , letter , and 
punctuation.” 

Second. —Because it contains an elaborate Alphabetical Analysis of the Con¬ 
stitution, which greatly facilitates classing into the mind a correct understand¬ 
ing of the Paramount Law of the Country. 

Lastly. —Because it comprehends the Declaration of Independence, the 
Articles of Confederation, the inaugural speech of Washington, the Ordinance 
of 1787, the Official Proceedings which led to the formation and to the adop¬ 
tion of the Constitution of the United States, together with other important 
documents, explanatory tables, general index, &c.; the whole ensemble throw¬ 
ing a flow of light on the events of the times, so as to enable the discerning 
mind to appreciate judiciously the connection of the Facts therein recorded. 

The mass of a particular distinct class of historical documentary evidence 
contained in Hickey’s standard work, beginning in 1782, running up to 1787, 
all pointing out, invariably, to the fad, that the people at large were dissatis¬ 
fied with the form of Government established under the 11 Articles of Con¬ 
federation,” deserves particular notice, inasmuch that it shows not only the 
general discontent of the people, but because it furnishes abundant proof that 
the States’ Governments could not agree with each other; their discordant 
and jarring action prevented their obtaining Treaties of Commerce with 
foreign nations. It became evident in the early part of 1787 that the Con¬ 
federated Government, under the “ Articles of Confederation,” could not work 
any longer—disintegration was rapidly taking place. It was in consequence 
of the pressure of general popular discontent, of the remonstrance of true 
patriots, of the admonitions of statesmen, of wise and upright men, spread 
all over the country at that eventful period, that the officials of the States’ 



24 


Governments were brought, at last, after an obstinate struggle of many years, 
to agree to appoint and send delegates to constitute a Convention with a view 
that said Convention might devise a form of Government in harmony with 
the wants and aspirations of a United People, recognizing the people as the 
rightful source of all power, not only theoretically, but in the actual possession 
and exercise of popular rights. 

Any person of common intelligence, unwarped by preconceived ideas, can¬ 
not rise from a careful revision of the aforesaid “ documentary evidence ” 
without being impressed with the conviction that the “ official proceedings ” 
which led to the formation of the Constitution, divested of their usual form 
and technicalities, substantiate the following facts : 

1. That the Members of the Congress of the Confederation, actuated by their 
own private convictions that a change in the form of Government was abso¬ 
lutely necessary; urged, moreover, by the pressure of public opinion and 
clamor, did, virtually, make a formal demand on the Legislatures of their own 
States to surrender into the hands of the people thereof the sovereign powers 
of a general nature which the several States’ Governments had assumed and 
exercised under the “ Articles of Confederation.” 

2. That twelve States’ Governments out of thirteen yielded to that “ de¬ 
mand ” by appointing Delegates which were to meet in Convention for the 
special purpose of devising a Constitution intended to be submitted to the people. 

3. That said Delegates did meet in Convention, at Philadelphia, on the 14th 
day of May, 1787, and after debates of about four months duration, agreed 
unanimously on a new Constitution whereto each Delegate subscribed his 
name on the 17th of September, 1787. The last article of the Constitution 
(Art. YII.) provides expressly that “the ratification of the Conventions of 
nine States shall be sufficient for the establishment of this Consitution between 
the States so ratifying the same .” 

4. That the adopted Constitution was, by order of the Convention of the 
Delegates of the twelve States therein represented, transmitted, on the same day 
as that of its adoption, accompanied with the resolutions, passed unanimously, 
that it should be laid before the United States in Congress assembled, in order 
that it should be submitted to a Convention of Delegates chosen in each State 
by the people thereof for their assent and ratification. 

5. That the Delegates of the Constituent Convention, in transmitting the 
Constitution, gave out their opinion and directions as to the proceedings 
which were to follow, in the following resolution adopted by them unani¬ 
mously : 

“ Resolved ,—That it is the opinion of this Convention, that as soon as the 
Conventions of nine States shall have ratified this Constitution, the United 
States, in Congress assembled, should fix a day,” &c. 

The sequel of this resolution is relative to the forms to be adopted for elect- 


ing Senators, Representatives, Electors to choose the President, counting the 
votes, &c., &c. The resolution ends as follows: 

“ After he (the President) shall be chosen, the Congress, together with the 
President, should without delay proceed to execute the Constitution. 

“ By the unanimous order of the Convention, 

“ George Washington, President. 

“ William Jackson, Secretary .” 

The above resolutions were transmitted to the President of the Congress, 
together with a letter from the President of the Constituent Convention, 
dated September 27th, 1787, so that the unanimously adopted Constitution, 
the resolutions relative to the mode of its ratification and execution, and the 
letter of George Washington in reference to the whole subject, bore all the 
same date. On the receipt of the Report of the Constituent Convention, in¬ 
cluding the above documents, Congress passed the following resolution : 

“ United States in Congress Assembled, 

“ Friday, September 28, 1787. 

“ Present—(Twelve States, the names whereof follow.) 

“ Congress having received the Report of the Convention lately assembled 
at Philadelphia— 

“ Resolved , unanimously, —That the said Report, with the resolutions and 
letter accompanying the same, be transmitted to the several Legislatures, in 
order to he submitted to a Convention of Delegates chosen in each State by the 
people thereof, in conformity to the resolves of the Convention made and provided 
in that case.” 

It is important and proper to observe here, that the above series of circum¬ 
stantial facts, 1 to 5, are faithfully deduced, quoted, and condensed from the 
“ Official Proceedings,” leading and accessory to the formation of the Consti¬ 
tution, and that their obvious drift and connection show conclusively, that the 
States’ Governments, as such, were merely passive agents in its formation, 
adoption, ratification, and the setting up thereof, into operation. 

That the only action that each State Legislature had been required to per¬ 
form, after the Constitution had been framed and agreed upon by the Con¬ 
stituent Convention, was simply to recommend and to submit said Constitution, 
integrally, for ratification, to a Convention of Delegates chosen in each State 
by the people thereof; this had been done, as quoted above, in pursuance of 
directions transmitted to each State Government by the United States in 
Congress assembled, showing, palpably, that the form of Government styled 
“ Articles of Confederation ” no longer existed, inasmuch, that according to 
said “form of Government,” the members of the United States Congress re¬ 
ceived their instructions each separately from his own respective State Gov¬ 
ernment, whereas the States’ Governments having surrendered the exercise 
of their sovereign powers by calling together a Convention of Delegates to 
devise a new Constitution, became, thereby, liable to receive directions from 

4 


2d 


Congress, that is to say, that the Members of Congress who, until then, had 
•acted as the mere agents of their respective State Governments , became collect¬ 
ively the controlling power to direct the proceedings relative to the formation 
-of the Constitution, its mode of ratification, and the organization of the Gov- 
-ernment preparatory to its going into operation. 

The people of nine States out of the twelve which had met in Convention, 
acting as the rightful sovereigns thereof, having ratified, on the 21st of June, 
1788, the adopted Constitution, the consequence therefrom was that until then 
these nine distinct communities were, by the very act of ratification, merged 
into one , as by so doing, they entered into a solemn compact to form henceforth 
but one people under a Constitution ordained by the whole people of these 
nine States united into one common bond , as is provided for in the Preamble 
of the Constitution. 


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